Paying the Trial Tax: Race, Guilty Pleas, and Disparity in Prosecution

• Author: Alexander Testa,Brian D. Johnson
• DOI: 10.1177/0887403419838025
• Published date: 01 May 2020
• Date: 01 May 2020
• Subject Matter: Articles

838025CJPXXX10.1177/0887403419838025Criminal Justice Policy ReviewTesta and Johnson
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Criminal Justice Policy Review
2020, Vol. 31(4) 500 –531
Paying the Trial Tax: Race,
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Prosecution
Alexander Testa1 and Brian D. Johnson2
Abstract
The vast majority of criminal cases are disposed of through guilty pleas, yet relatively
little empirical research focuses on the factors that are related to whether a
defendant pleads guilty or goes to trial. The current work investigates this issue,
analyzing three recent years of data from the Maryland Commission on Criminal
Sentencing Policy. It examines predictors of guilty plea and trial dispositions as well as
key differences among different types of guilty pleas. Findings indicate that Black and
Latino defendants are substantially less likely to plead guilty, and that these differences
are most pronounced for nonnegotiated guilty pleas. Little evidence emerges for
gender disparities or for compound disadvantages associated with young, male,
minority defendants. Results are discussed as they relate to contemporary theoretical
perspectives on racial differences in perceived legitimacy and trust in the criminal
justice system.
Keywords
trial tax, guilty pleas, trials, disparity, prosecution
Introduction
The right to jury trial is a fundamental aspect of the American legal system. Yet, despite
its Constitutional centrality, relatively few defendants exercise their right to trial and
little empirical work investigates the factors related to this important decision.
Compared with the vast research literature on inequality in sentencing, considerably
1The University of Texas at San Antonio, TX, USA
2University of Maryland, College Park, MD, USA
Corresponding Author:
Alexander Testa, Department of Criminal Justice, The University of Texas at San Antonio, 501 W. Cesar
Chavez Blvd., San Antonio, TX 78207, USA.
Email: alexander.testa@utsa.edu

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Testa and Johnson
501
less work focuses on disparities that characterize critical stages of criminal case pro-
cessing such as the decision to plead guilty or pursue trial (Baumer, 2013; Ulmer, 2012).
Indeed, criminologists, sociologists, and legal scholars have only rarely considered “the
choice of alternative types of case disposition” when examining the intersection of
social inequality, criminal case processing, and disparities in punishment (Johnson,
King, & Spohn, 2016, p. 487).
This is important given that evidence suggests disparities often exist at multiple
points in criminal justice case processing (Albonetti, 1990; Demuth, 2003; Reitler,
Sullivan, & Frank, 2013; Schlesinger, 2005), and that these differences can exert
important influences over final punishments (Kutateladze, Andiloro, Johnson, &
Spohn, 2014; Spohn, 2009; Wooldredge, Frank, Goulette, & Travis, 2015). One of the
most consequential decisions is whether a defendant enters a guilty plea or opts for a
trial. The broader legal ramifications of pleading guilty, along with its pronounced
influence on punishment, suggest it is a key turning point in the disposition of criminal
cases (Albonetti, 1990). Although the Sixth Amendment to the Constitution guaran-
tees the right to a public trial by an impartial jury, few cases are disposed of at trial and
surprisingly little research exists on the social correlates of pleading guilty.
Researching the determinants of plea outcomes is important for several reasons.
First, the majority of criminal convictions are decided by guilty plea. Historical over-
views show that the plea rate for felony offenders has been steadily increasing for
decades (B. P. Smith, 2005). For instance, guilty plea rates in federal district courts
rose from about 70% in the early 1980s to more than 95% in the 2000s (Johnson et al.,
2016). Reaves (2013) finds guilty plea rates for felony offenders adjudicated in large
urban courts increased from 90% in 1990 to 97% in 2009. As Justice Anthony Kennedy
famously opined, plea bargaining “is not some adjunct to the criminal justice system;
it is the criminal justice system” (Missouri v. Frye, 2012).
Second, some research suggests plea/trial differences reflect broader patterns of
inequality in society. Black and Latino defendants, in particular, may be less likely to
enter into plea agreements (Albonetti, 1990; Frenzel & Ball, 2008; Metcalfe &
Chiricos, 2018; Sutton, 2013), possibly because they receive less favorable plea offers
(Kutateladze, Andiloro, & Johnson, 2016) or because they have less trust in the crimi-
nal justice system (Albonetti, 1990; Hagan & Albonetti, 1982). Moreover, racial dif-
ferences in guilty plea rates are important because they are likely to translate into
differences in sentencing severity. A substantial body of research demonstrates that
there is a plea discount, or “trial tax,” in which defendants who plead guilty are pun-
ished less severely than those who are convicted at trial (Bushway, Redlich, & Norris,
2014; N. J. King, Soule, Steen, & Weidner, 2005; Ulmer & Bradley, 2006; Ulmer,
Eisenstein, & Johnson, 2010). For instance, recent reviews note that defendants con-
victed at trial compared with those convicted by guilty plea are more likely to go to
prison and receive sentences that are 15% to 60% longer on average (Johnson, 2019;
National Association of Criminal Defense Lawyers, 2018). As such, disparities in
guilty pleas may directly contribute to social inequalities in sentencing. Organizational
perspectives on sentencing suggest that the decision to plead guilty shapes the applica-
tion of social attributions related to punishment. For example, Kramer and Ulmer

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Criminal Justice Policy Review 31(4)
(2009, p. 8) note that “a defendant’s choice to plead guilty” has “ramifications for how
court actors define his or her blameworthiness.” Accordingly, understanding the fac-
tors that explain the decision to plead guilty carries implications for theories of punish-
ment more broadly.
Importantly, research investigating the social correlates of plea decisions remains
limited in important ways. Much of the extant research is dated, relying on data from
the 1970s and 1980s (Albonetti, 1990; LaFree, 1980), with even more recent studies
using datasets that are nearly two decades old (Frenzel & Ball, 2008; Sutton, 2013).
Analyzing plea decisions in contemporary court contexts is particularly important
given the continued growth of guilty pleas (Reaves, 2013; B. P. Smith, 2005) and the
fact that modern sentencing reforms, like sentencing guidelines, have shifted greater
plea bargaining power to the prosecutor (Bibas, 2001; Miethe, 1987). As Schulhofer
and Nagel (1997, p. 1284) argue, “prosecutors exercise a considerable degree of sen-
tencing discretion through charging and bargaining decisions,” which raises the pre-
mium on understanding the factors that shape negotiated guilty pleas (Albonetti, 1990;
Alschuler, 1978; Piehl & Bushway, 2007).
Notably, there has been an increase within the past year in scholarship assessing the
decision to plead guilty (Kutateladze & Lawson, 2018; Metcalfe & Chiricos, 2018).
Despite its valuable contributions, this work remains limited in key ways. Metcalfe
and Chiricos (2018) examined guilty pleas for indigent defendants from one Florida
county public defender’s office and focused on simple Black–White comparisons.
Kutateladze and Lawson (2018) analyzed a subsample of misdemeanor offenders in
New York City, the overwhelming majority of which pled guilty. Both studies use data
from a single urban county, and the former used a case-control design that resulted in
an analytic sample with nearly half of the defendants going to trial, whereas the latter
relied on a sample where only 0.2% of defendants went to trial. As a result of these
unique samples, the generalizability of these findings is somewhat limited.
Moreover, extant research has yet to consider the ways that other factors may con-
dition trial penalties, such as the type of criminal offense committed. Importantly,
previous work indicates that sentencing disparities for other groups, like Latinos, often
parallel or even exceed those for Black defendants (Johnson, 2003; Steffensmeier &
Demuth, 2000), and that trials are more prevalent for certain types of crime, such as
more serious and violent offenses (Reaves, 2013; Ulmer & Bradley, 2006). Finally,
little work considers important distinctions among different types of guilty pleas. Not
all guilty pleas are created equal; in some cases, defendants plead guilty outright, and
in others, prosecutors explicitly negotiate concessions in exchange for the act of self-
conviction (Padgett, 1985). Moreover, in some states, certain types of guilty pleas are
judicially approved and legally binding on the court. As such, there are important dif-
ferences in the degree of uncertainty involved in various types of guilty pleas, which
is useful for investigating sources of inequality across modes of conviction. Overall,
our understanding of plea disparities is restricted to a small number of studies from
few jurisdictions, most of which rely on data that predate recent shifts in sentencing
policy. For these reasons, recent reviews of the guilty plea literature have concluded
that “relatively little empirical research analyzes plea...